Austin Personal Injury Lawyer - Automobile Accidents

What Can Be Done To Protect Dallas Motorists From Wrong-Way Drivers?

Brooks Schuelke — Fri, 31 Jul 2009 10:48:21 GMT

I previously wrote that I thought the North Texas Toll Authority was not doing enough to protect motorists on the Dallas North Tollway from wrong way drivers. If that’s the case, what can be done?

First, I think the NTTA needs to take a real tough look at the design of the on-ramps and off-ramps of the tollway. I know that Sherita Coffelt, the NTTA spokeswoman, has remained steadfast that no problems exist with configuration, but it’s clear that something is wrong. I know that in several other states, the various transportation departments have been able to drastically reduce the wrong-way driver incidents by such simple tactics as adding or removing barriers to more clearly direct traffic, making it harder for drivers to get on roadways going the wrong direction and easier for drivers to get on roadways properly. The NTTA needs to have the experts at the Texas Transportation Institute look this over and see if any solutions exist.

Second, since warning drunk drivers they’re driving the wrong way is largely ineffective, the NTTA should investigate a system to warn drivers going the correct way when wrong way drivers might be present. For more than a decade, New Mexico has used an Intelligent Transportation System (ITS) to warn drivers driving the correct way of the presence of wrong way drivers. The system uses a vehicle sensor near exit ramps. When vehicles are detected driving the wrong way, the system triggers two flashing lights; one light facing the wrong way driver flashes warning him or her, and another light facing the proper flow of traffic starts flashing to warn that traffic of the presence of a wrong way driver. This gives a warning to the drivers that are actually in a position to react — drivers driving the proper direction. Since then, other states have experimented with the use of various ITS systems to warn drivers and to even automatically warn public safety officials about the presence of wrong way drivers.

Third, the NTTA should take the lead on educating the driving public on how to "defend" themselves from wrong way drivers. For instance, most wrong way wrecks occur in the left lane of traffic (because drivers going the wrong way tend to stay to their right). The public should be warned to limit their driving in the left lane after dark, the peak time for wrong way wrecks. The NTTA should take the lead on an educational campaign to provide tips such as this to motorists.

In the last bit of hope, leads may also be coming from the automotive industry. For example, BMW and Nissan are both working on systems that would use vehicles’ GPS and navigation systems to warn the car’s driver, and potentially other drivers, when the car is entering the roadway in the wrong direction.

If you want to learn more about wrong way wrecks and countermeasures, please read this technical report from Scott Cooner at the Texas Transportation Institute. I have read countless articles and reports on wrong-way drivers, and this report is the most thorough.

Originally posted at InjuryBoard by Brooks Schuelke

Learn From D Magazine’s Story of a $25,000 Fender Bender

Brooks Schuelke — Thu, 30 Jul 2009 21:33:53 GMT

A lot of my fellow trial lawyers are up in arms over a recent D magazine article purporting to tell the story of a claim and lawsuit after the author was involved in a "minor car accident." The article is the author's criticism of the civil justice system after he hit someone and was sued. While the article is completely one-sided, I think there are things that we can all take from it.

First I want to address the defendant's claims about the plaintiff’s injuries. The author mocks the plaintiff’s "soft tissue" injuries when he simply "nudged" another car and neither car had any significant damage. I don’t mind the author believing that. Insurance companies have been amazingly successful at marketing this theory to people (even creating LIST (low impact soft tissue) and MIST (minor impact soft tissue) acronyms to help people remember). I don't really have a gripe with the author for being duped by insurance company's propaganda.

But it’s just wrong. Most of the recent literature finds that there is no relationship between vehicle damage and injury. (Drs. Centeno, Freeman and Elkins, A Review of The Literature Refuting the Concept of Minor Impact Soft Tissue Injury, Pain Resource Management, Summer 2005; Robbins, Lack of Relationship Between Vehicle Damage And Occupant Injury, SAE 970494). Don't forget, a person can herniate a disc by something as simple as sneezing. And the literature also shows that these soft tissue injuries are real. Even without broken bones or something that shows up on x-rays, much of the recent literature finds that 15-40% of patients with neck pain after a car wreck develop chronic, life-long pain. (Drs. Schofferman, Bogduk, and Slosar, Chronic Whiplash and Whiplash Associated Disorders: An Evidence-Based Approach, Journal of the American Academy of Orthopaedic Surgeons, Oct. 2007.)

But I don’t want to get into a fight about the science; I want to talk about what we can learn from the process.

First, and many plaintiff's lawyer may not be happy with me saying this, but there is some truth to the story. I don’t know if the parties involved were in a scam, but there are far too many chiropractors and lawyers working together to "manufacture" claims. I’ve written on this practice numerous times, and I hope everyone can learn from the article to avoid the scheme. If you’re in a wreck, and you get a call from someone that’s going to help "refer you to medical care," then run. Do not pass Go, and do not collect $200.00. Protect yourself and avoid these types of scams. Get a reputable lawyer; get someone you can trust. Fortunately, the Texas Trial Lawyers Association lobbied hard last session to get legislation passed limiting barratry so maybe there will be relief in sight.

Having said that, the author doesn’t take any responsibility for the conduct of his insurance company or his lawyer. It appears that the plaintiff incurred $5,200 in bills for the medical care he received as a result of the wreck. At a mediation, the insurance company offered $500.00 to settle the case. This type of offer forces the case to go to trial. One of my favorite mediators in town says that as a plaintiff, the best offer you can get is $0 or the equivalent of $0 (like in this case) because then you know you have to try the case. There are no hard questions about settling.

In this case, that $500 offer from the insurance company forced the case to trial. The author concludes "my lawyer cost the insurance company $11,875 (95 hours at $125 per hour), and a couple of shady medical clinics got $5,300. The case occupied the Dallas County court and staff intermittently for two and a half years, and six jurors missed two days of work." And he is blaming the plaintiff. Take some responsibility. That $500 offer at the mediation from the insurance company forced the trial. The insurance company offer (and insurance companies systematically make offers in cases like this) cost themselves the attorneys’ fees and cost the County court and staff time.

I know you're thinking, "but with those shady medical setups, that $500 was reasonable." Well, the jury didn’t think so. The jury awarded the plaintiff the full amount of his medical expenses, plus a little more. When we evaluate settlement offers, we always evaluate them against what we think a jury would do. In this case, the jury thought the $500 was wrong. The adjuster got it wrong. If the adjuster had offered a more reasonable amount, I’m confident the lawyer would have stopped beating his chest and the case would have settled.

The author also didn’t seem to understand another of the jury’s decisions. In Texas, claims must be brought before the statute of limitations expires. In addition to filing suit before limitations expires, you need to either have the defendant served before the statute expires or show that you were diligent about serving the citation. In this case, the defendant argued (and probably rightfully so) that the plaintiff wasn’t diligent in serving the citation. But the jury found diligence. Again, the author takes no responsibility, claiming that the jury didn’t understand the issue. But again, it’s his lawyer’s job to make sure the jury understands the issue. If the lawyer didn’t properly explain the charge to the jury, he has no one but himself to blame.

And I think we can also learn about framing a story. When the author told the lawyer that they had lost, the lawyer responded, "We lost but we won...The guy wanted $25,000 and got pocket change." Notice the lawyer didn’t say, "The insurance company wanted to pay $500, but paid $5,990 (and over $11,000 to me) instead." It’s all about how you frame the story.

What I'm waiting for is to hear from D magazine (or maybe some of you) the stories where the plaintiffs were injured and they had to endure ridiculous, frivolous defenses or claims from the defendants. Unlike the sitaution in this case, those frivolous defenses seem to be prevalent in my practice.

Originally posted at InjuryBoard by Brooks Schuelke

Is The Dallas North Tollway Doing Enough To Stop Deadly Wrong-Way Wrecks?

Brooks Schuelke — Tue, 28 Jul 2009 10:58:28 GMT

If you’ve been reading this blog, you know that the Dallas North Tollway has been the site of numerous deadly wrong-way wrecks in the last few months. As I reported yesterday, earlier this month the North Texas Toll Authority announced that they were making some changes to help reduce those dangers. But are those changes enough?

The changes include the addition of raised reflective pavement markers at each of the tollway’s 47 exit ramps. The raised markers will reflect red when drivers approach from the wrong direction. The tollway is also installing 25 "wrong way" and "do not enter" signs along the tollway.

While I applaud the action, these changes don’t go far enough. The biggest cause of wrong-way wrecks appears to be intoxicated drivers, with confused, elderly drivers a distant second. While the NTTA’s modifications might help an elderly driver, they do nothing to help with wrecks caused by intoxicated drivers.

It’s my opinion that once the driver has become impaired, it’s too late to rely on warnings to try and stop the driver from driving the wrong way. You can have signs two or three feet off the ground, reflective or flashing lights, blinking signs, or whatever you want to try. Once the driver is impaired, NTTA is not going to be able to put up a warning sign of any type that’s going to be able to get the driver’s attention.

Assuming that’s true, what can be done to prevent these wrecks? We’ll look at that over the next couple of days.

Also, one criticism or question that I have heard people ask in the wake of the current rash of wrong-way drivers on the tollway is "what responsibility does NTTA have since the wrecks are being caused by these drunk drivers?" And my response is that "clearly, there is something wrong here." While drunk driving and wrong-way drivers are a problem all over the country, I’m not aware of any roadway in the country with as many deadly wrong-way wrecks as the Dallas North Tollway. Texas is a big state, and from the little reading I’ve done, there are as many, or almost as many, deadly wrong-way wrecks on the Dallas North Tollway in the last year than the rest of the state combined. Something is clearly wrong. Whether it’s poor on-ramps or some other reason, I’m not yet sure. But something is clearly wrong, and the NTTA has a responsibility to try and figure out what it is and to try and resolve it.

Originally posted at InjuryBoard by Brooks Schuelke

Wrong Way Wrecks Are Still A Problem

Brooks Schuelke — Mon, 27 Jul 2009 10:50:52 GMT

Last month, I posted about the rash of wrong-way drivers on the Dalls Parkway. Unfortunately, it's still a problem. Just this weekend, eight people were killed in a wrong-way crash in New York.

At this point, those of us that are taken aback at the problem have written about it extensively, including:

I've tried to find some tips describing ways that we might minimize the risk that we're hit by wrong-way drivers or (ghost drivers) without much luck. Perhaps the most important thing that drivers can do is to be aware that most of these accidents occur at night and involve drivers that are drunk or have been using drugs.

The best solution for these problems seems to be in the better design of roadways and signage. Fortunately, that's happening in some of the worst places. For example, the Dallas North Tollway is adding more "wrong way" and "do not enter" signs on roadways and putting more reflective material on the road to direct proper direction of traffic in an effort to minimize this problem.

Originally posted at InjuryBoard by Brooks Schuelke

Government Covers Up Research Showing Link Between Cell Phones And Auto Accidents

Brooks Schuelke — Tue, 21 Jul 2009 14:29:52 GMT

The New York Times wrote that two public interest groups had obtained documents from the National Highway Traffic Safety Administration that show the link between cell phone usage and auto accidents. The documents and a requested study of 10,000 drivers were all shelved because the NHTSA was more worried about politics than the safety of our drivers.

Shockingly, the research found that a motorist talking on a cell phone was four times as likely to be involved in a crash as other drivers, and are as likely to cause an accident as someone with a .08 blood alcohol content.

And using hands-free devices didn’t help much. . In fact, the agency had prepared a letter to the governors of each state warning them of the dangers of even using hands-free devices.

Having said all the above, there's nothing really new. People know the dangers of driving while talking on the phone, and yet people do it all the time. I just hope that more information like this gets out and that we don't have to wait for more deaths before this practice is curbed.

Amen! New Legislation Seeks To End Chiropractic Solicitation Of Car Wreck Victims

Brooks Schuelke — Mon, 29 Jun 2009 09:04:41 GMT

I’ve previously written about the problem with chiropractors soliciting car wreck victims and then directing the clients to attorneys, many of whom provide questionable representation. In the 2007 legislative session, the Texas Trial Lawyers Association (our state-wide group of plaintiff’s attorneys) and others joined to try and pass a bill that limited the ability of chiropractors to solicit victims. The bill passed both the House and the Senate by almost unanimous margins only to be vetoed by Governor Perry. At the time, I had some harsh words for Perry.

But now, it’s time to give Perry his due. During the last session, the House and Senate passed HB 148, which amended the barratry statute that already applied to lawyers and now makes it illegal for chiropractors to solicit car wreck or other accident victims in person or by telephone until the 31^st day after an accident. Governor Perry signed the bill into law on June 19, 2009, and it will go into effect on September 1, 2009.

With any luck, this new legislation will at least minimize the improper case running that has been going on.

Originally posted at InjuryBoard by Brooks Schuelke

Learn From Sergio Kindle --- Don't Text And Drive

Brooks Schuelke — Sat, 27 Jun 2009 22:58:35 GMT

Everyone that knows me knows that I'm a huge University of Texas fan. That's why I was so dismayed tonight to see that Texas star linebacker/defensive end Sergio Kindle suffered a concussion when he drove his car into an apartment building, likely a result of texting while driving. I won't beat a dead horse about how bad of an idea this is because I just had a lengthy post about it yesterday. If you want to know about the dangers, go read that text messaging while driving post.

There are also a number of other posts on this issue that provide more information:

Originally posted at InjuryBoard by Brooks Schuelke

Do You Have A Teen Driver? Make Them Watch This Today Show Video On The Dangers of Texting While Driving

Brooks Schuelke — Fri, 26 Jun 2009 14:40:24 GMT

As parents, our job, I think, is to be repetitive on all the lessons that we're supposed to teach our kids that they refuse to learn. Although my kids aren't old enough for constant texting to be an issue yet, I know many of you struggle with that battle.

Unfortunately, you're not alone. Despite study after study finding that texting while driving is more dangerous than driving while intoxicated, an estimated 20% of drivers admit to text messaging while driving.

This has to stop. And if your kids won't listen to you, maybe they'll listen to the folks on the Today show so make your kids watch the video. It might save their lives.

Visit msnbc.com for Breaking News, World News, and News about the Economy

Originally posted at InjuryBoard by Brooks Schuelke

Wrong Way Drivers Causing A Rash of Traffic Fatalities In Dallas And Austin

Brooks Schuelke — Mon, 22 Jun 2009 18:22:32 GMT

It's one of those things that's almost too bizarre to be true. This weekend, four people were killed in a wreck caused by a wrong way driver on the Dallas North Tollway. The wreck occurred despite Department of Public Safety officers trying to stop the driver. You can see footage courtesy of Austin's KVUE.

But the amazing this is that this is not an isolated incident. In fact, the Dallas North Tollway seems to be a magnet for wrong way drivers and fatalities. On June 1, two people were killed on the Dallas North Tollway by a wrong way driver. In May, a teenager was killed on the Dallas North Tollway by another wrong way driver, and there was another wrong way wreck on the Dallas North Tollway in April. And the most recent of the rash of wrecks occurred when a wrong way driver resulted in one fatality and several other injuries in October 2008.

But wrong way wrecks aren't limited to the Dallas North Tollway; Austin has experienced its own problems with wrong way drivers. Earlier this month, a wreck caused by a wrong way driver killed a man in Austin, and in April 2008, a wrong way driver killed two people in a collision on I-35.

So these types of wrecks are more common that we would think. But what's the cause and what can we do about them? I'll try to post on those two questions later in the week.

Until then, you might check out these related Injuryboard links:

Originally posted at InjuryBoard by Brooks Schuelke

Car Wreck Victims, Please Don't Become Victim To Insurance Company Swoop And Settle Techniques

Brooks Schuelke — Tue, 16 Jun 2009 09:27:43 GMT

I think the sign of genius is being able to take something from those you disagree with. I have frequently written about my displeasure with attorneys or chiropractors that improperly (and perhaps illegally) solicit accident victims (eg here and here). Last week, I received an email from someone that disagreed with me. I'm cutting and pasting the email (including the errors), but leaving off the individual's name because I don't have the person's permission to post the email:

I read your ridiculous article on solicitation of MVA victims. I have done this type of solicitation and I want you to know that most victims are so thankful that someone was helping them with their pain and also getting them adequate representation for their claim.
The insurance companies are making a killing on the public's ignorance and oft times abuse the system by showing up at the injured's house or even at the sight of the accident with a check which cancels any further obligation with the insurance company. One thing you'll never see in the news is Allstate or State Farm's profit from the previous year. If the public was aware of it there would be riots. I don't know what kind of law you practice but you've obviously not dealt with those creeps. You are lucky nowadays to just get your medical paid, let alone any further compensation for injury and suffering. As long as people maintain attitudes like your's we'll all just take two aspirin and forget about getting osteoarthritis. You are not for the plaintive, that's for sure.

Obviously, I disagree with a lot of things in the email, but I won't go into that because I don't want this discussion to escalate into an argument. However, I do want to emphasize the one point that the author makes that is important is that insurance companies "abuse the system by showing up at the injured's house or even at the sight [sic] of the accident with a check." I call this "swoop and settle." They adjusters will come in with ridiculously low offers, often making false statements to the auto accident victim about the victim's claim, and then obtain a release. When those of us in the plaintiff's bar discussed our position on barratry, the one issue that gave some pause was the swoop and settle conduct.

So if you're in a car wreck, don't fall prey to these tactics. I always tell clients that the biggest mistake they can make is settling the claim before they know the extent of their injuries. While some are often anxious for money, plaintiffs are almost always rewarded for their patience.

Originally posted at InjuryBoard by Brooks Schuelke